The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 18233 of 2018 (Application under Articles 226 & 227 of Constitution of India) --------------- Nihar Ranjan Paikaray .…… Petitioner - Versus - Collector & District Magistrate, Nayagarh-cum- C.E.O., Zilla Parishad & Others ...…. Opp. Parties Advocate(s) appeared in these cases:- _________________________________________________________ For Petitioner : Mr. Pradipta Kumar Mohanty, Sr. Adv. with M/s.D.N. Mohapatra, J. Mohanty, P.K. Nayak, S.N.Dash, P.K. Pasayat & P. Mohanty, Advocates. For Opp. Parties : M/s. A.K. Mishra, S. Mishra & A. Mishra, Advocates. [For O.P. Nos. 1 & 2]
Legal Reasoning
Having considered the rival submissions and on going through the impugned order under Annexure-9 this Court is of the considered view that an order adversely affecting the petitioner having been passed, the petitioner ought to have been impleaded as a party to the proceeding and given opportunity of hearing. It goes without saying that 1 (2003)2 SCC107 Page 5 of 7 the principle of audi alteram partem is salutary and has to be adhered to by all concerned including the quasi-judicial authorities particularly when an order adversely affecting the interest of a party is likely to be passed. It is needless to mention that the impugned order has resulted in disengagement of the petitioner from service which directly affects his livelihood guaranteed under Article-21 of the Constitution of India. Reference in this regard may be had to the celebrated judgment of the Supreme Court in the case of State of Orissa v. Dr. (Miss.) Binapani Dei2, wherein it was observed as follows “The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of to be performed; it need not be shown to be super- added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.” intended function the 2 AIR 1967SC 1269 Page 6 of 7 6. In such view of the matter, this Court has no hesitation in holding that the impugned orders under Annexure-9, in so far as it relates to the petitioner, and Annexure-13 cannot be sustained in the eye of law. 7. The writ petition is therefore, allowed. The impugned orders under Annexures- 9 in so far as the petitioner is concerned and Annexure-13 are hereby quashed. The matter is remitted to the Collector, Nayagarh for disposal of the complaint (Misc. Case No.34/2018) afresh after granting proper opportunity of hearing to the petitioner. Since this is a case of the year 2018, the Collector shall do well to dispose of the matter as early as possible, preferably within a period of four months. .……..…………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 18th April, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Apr-2024 16:54:53 Page 7 of 7
Arguments
Mr. Ajaya Kumar Moharana, Advocate [ For O.P. No.6] __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18th April, 2024 SASHIKANTA MISHRA, J. The petitioner has approached this Court seeking the following relief: “It is, therefore, prayed this Hon’ble Court may graciously be pleased to issue Rule NISI in the nature of writ of Mandamus and/or any other appropriate writ/writs, direction/directions, order/orders calling Page 1 of 7 upon the opposite parties to show cause as to why the impugned order dated 22.09.2018 vide Annexure- 9 and office order No. 537 dated 13.02.2020 vide Annexure-13 of opp.party no.1 passed in Misc. Case No. 34/2018 shall not be quashed and to reinstate him back to his position as he held since the date of passing of impugned order vide Annexure-9, along with all consequential service benefits and arrear dues. AND/OR If the opp.parties fail to show cause and/or show insufficient or false cause, make the said rule NISI absolute.” 2. The case of the petitioner is that he was engaged as Gram Rozgar Sevak(GRS) in Khairapalli Gram Panchayat in the district of Nayagarh. As per engagement order issued on 22.09.2018, he was entrusted with the work of MGNREGS as per job chart issued in his favour. One Panchayat Samiti member of the said Gram Panchayat brought to notice certain irregularities in the matter of disbursement of wages inasmuch as the wages has been allegedly paid to certain dead and non-existent persons. An enquiry was conducted by the Additional Programme Officer, MGNREGA, Ranpur, who submitted his report on 15.02.2018. In the said report, he specifically held that the relevant particulars of the beneficiaries in the concerned records/registers had been filled up by the concerned Mate and that the petitioner being the GRS was, at the relevant Page 2 of 7 time, assigned with another Gram Panchayat. The petitioner was called upon to show cause, against which he submitted his detailed explanation, inter alia, taking the stand that at the relevant time he was assigned with the duties of another Gram Panchayat. The Collector vide order dated 22.09.2019 (copy enclosed as Annexure-9) in Misc. Case No. 34 of 2018, initiated on the basis of the complaint lodged by Dusasan Jena, Panchayat Samiti Member held that as per the enquiry report certain irregularities were found to have committed in the execution of MGNREGS project. Accordingly, direction was issued, inter alia, to disengage the petitioner and the Mates involved in the concerned MGNREGS project. Pursuant to such order, another order of disengagement was issued by the Collector on 13.02.2020 (copy enclosed as Annexure-13) 3. Mr. Pranaya Mohanty, learned counsel appearing for the petitioner submits that the petitioner was never noticed to appear before the Collector in the complaint filed by said Dusasan Jena. The order therefore, was passed entirely behind his back. That apart, the Collector, despite referring to the enquiry report, has ignored the specific Page 3 of 7 finding of the enquiry officer that the petitioner was at the relevant time assigned with the work of another Gram Panchayat. 4. Mr. Anup Mishra, learned counsel appearing for opposite party Nos. 1 and 2 submits that as per the enquiry report, the irregularities in the execution of MGNREGS projects was clearly established. He however, fairy concedes that the petitioner had not been heard before passing of the impugned order under Annexure-9 by the Collector. Nevertheless he submits that the order of the Collector is appelable. Mr Mishra further raises a preliminary objection against the petition questioning its maintainability in light of the comprehensive guidelines dated 06.04.2018, which prescribes the Director, Special Projects as the Appellate Authority. It is submitted that the petitioners ought to have preferred an appeal before the Appellate Authority within 30 days against the order of the Collector-cum-CEO, Zilla Parishad instead filing this writ petition. It is true that in the presence of an alternative remedy, the writ court would ordinarily abstain from entertaining such matter but such abstinence is not mechanical rather is a matter of Page 4 of 7 discretion. Explaining the scope of interference of writ courts in the presence of alternative remedy, the Supreme Court in Harbanslal Sahnia v Indian Oil Corporation Ltd1. held as follows: “The rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the writ seeks enforcement of any of the fundamental rights; where there is failure of principle of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.” In the present case, the petitioner was not heard before passing of the impugned order, which is a violation of the principle embodied in the maxim audi alteram partem and is therefore, a fit case for the court to exercise such discretion. 5.